Scarlett v. Department of Homeland Security (Challenging mandatory detention of lawful resident during removal proceeding)

Errol B. Scarlett, a longtime lawful permanent resident of the U.S. and the subject of an immigration proceeding, has been imprisoned for more than five years by federal officials pending the final adjudication of that proceeding. The government maintains that Scarlett, who is originally from Jamaica, is subject to mandatory detention until his removal proceedings are complete, claiming that a decade-old drug possession conviction renders him a current danger, and that his failure to appear at his criminal arraignments during that period renders him a current flight risk.

On Jan. 28, 2009, the ACLU and NYCLU jointly filed an amicus brief arguing that Mr. Scarlett’s prolonged detention is not required by the Immigration and Naturalization Act and violates of the due process clause. The brief argues that Mr. Scarlett’s detention is not subject to mandatory detention, and that if the mandatory detention provision were applicable, its application to Mr. Scarlett would be unconstitutional because it imposes an unreasonably long detention.

On July 10, 2009, a federal district judge in Buffalo ordered that the government must provide Scarlett with a hearing within 60 days before an immigration judge where the government must demonstrate that he poses sufficient danger or flight risk to warrant his continued detention.